Excerpt:madras estates land act (i of 1908), section 8(5) - land-holder--post-settlement inam--grant of both varams--grantee, whether land-holder--occupancy; rights, acquisition of--grant in inam and perpetual lease on favourable rent, distinction between--waste lands--inam grant, whether can be made. - .....ryotwari tracts. dealing with this contention, i must say i am unable to accept the theory that an inam grant of waste land is in law impossible. mr. varadachari's second contention cannot, however, be so easily disposed of. he contends, assuming that there is nothing to prevent the transaction from being a grant in inam, this transaction must be construed as a disposition in favour of a tenant. he argues that the land being waste, a favour able rent would be a normal feature and, points to section 26 of the estates land act and urges that it contemplates the co-existence of low rent with mere kudivaram grant. in effect he maintains that the transaction is not an out and out grant but it should be viewed in the nature of a perpetual lease, there being a remission of a part of the rent......

Judgment:

Venkatasubba Rao, J.

1. The question to be decided in this appeal is whether the defendants gave permanent occupancy-rights in the land in question.

2. The facts may be briefly stated. The Rajah of Vizanagaram granted in the year 1810 to Chintalapati Rayappa Razu a portion of the village of Lakkavaram on what was described as 'Harasala Cowle' or permanent lease. The assessment and other dues payable to the zemindar were fixed at Rs. 1,421-6-0 and the grant contains the words that 'the profits are to be enjoyed hereditarily from son to grand-son.' It may be useful to give the rendering of the grant itself (Ex. 1).

'Harasala Cowle granted by Sri Pusapali Narayanagajapathi Raju Maharajulungaru to Chintalapati Rayaparaju on Saturday the 5th day of the bright fortnight of Margasira of the Promodutha year. Yearly money rent for the village of Lakkavaram in the Purganah of Veddadi excluding the existing temple, Brahmin, mirasi inams from the year Pramothudha:

Rs. 1,400 jamabandi or assessment.

* * * * *Rupees one thousand four hundred and twenty-one and annas six is settled and Icadapa having been filed, Harasala Cowle is granted. Therefore, for this the instalments every year are:

* * * * *In default of payment on due dates the amounts should be paid along with interest. Cultivating this village extensively, the profits left after payment of the Sircar jamabandi or assessment from its produce, are to be enjoyed hereditarily from your son to grand-son. The laws enacted by the company should be observed towards ryots and other people.

3. In 1823 there was wrhat purported to be a relinquishment in favour of the zemindar and an endorsement was made on the Cowle to the effect that the land was relinquished. Taking his stand on this relinquishment, the zemindar sued for possession in 1825. His suit was dismissed in 1827 by the Provincial Court, Northern Division, on the ground that the parties who made the relinquishment had no right to the land and that Simhadri Eazu, the adopted son, of Rayappa Razu was the person entitled.

4. We have no information as to the subsequent history of this inam excepting that the family became split into three branches and a third share was held by a widow belonging to one of them, by name Sundaranarasayya. She granted to Sripati Purushottam about (5 acres of land out of her share. The grant is not before us and we have to decide what was the nature of the grant that was then made. Nor is it known when the grant was made excepting that it should have been previous to 1874 as Sundaranarasayya died in that year. On her death, the zemindar of Vizanagaram claiming that certain sums were due from her, resumed her share of the inam. The only information that we have in regard to the plot granted to Sripati Purushottam is that on the 8th of February 1893 he executed Ex. B in favour of the zemindar. It recites that the suit plot which had been granted to Purushottam and had been for long in his enjoyment, is at his request allowed to continue to remain with him and he agrees to pay an annual kattubadi of Rs. 6 and obtain receipts from time to time. We have to decide what is the nature of this grant and what light does it throw on the previous grant by Sundaranarasayya to Purushottam.

5. We have evidence in the case as to how Purushottam was enjoying these lands subsequent to 1893. Exhibit D is a Kadapa executed by one Jarripotula Bhimanna in favour of Purushottam wherein he agrees to pay a Kist of Rs. 43-80 for the land in question and to give up possession at the end of the year for which the lease was granted. This recites that one Dummi Appadu was cultivating the land during the previous year. Again in 18a9 the same Bhimanna executed another Icadapa, apparently for one year, agreeing to pay a half share of the produce and a further sum of Rs. 3-8-0 half of Rs. 7 the kattubadi payable or the land. In 1903, the 4th defendant who contests the suit, executed Ex. C-1 agreeing to take the land on lease for three years at a yearly Kist of Rs. 22-8-0 and to surrender the land at the end of the period. In 1909, again, the 4th defendant executed to Purushottam another Kadapa (Ex. C) for a period of three years on a yearly kist of Rs. 30 agreeing, as before, to give up the land at the end of the term. This recites that this very tenant was in the possession of the land during the year previous to the kadapa. These documents show that the land was being actually cultivated by tenants and that Purushottam leased to such lessees from time to time as he pleased. The evidence also makes it clear that the 4th defendant was originally admitted as tenant about the year 1900. On the death of Purushottam, his sons executed a sale-deed for the suit land in favour of the plaintiff. The suit is for recovering possession and the 4th defendant resists it on the ground that he has permanent occupancy rights.

6. The plea, namely, that occupancy rights were expressly conferred on the defendant by Purushottam may be easily disposed of. The terms of the kadapas C and C-1 are inconsistent with any such hypothesis and it is impossible to hold, in the face of his undertaking to surrender the land at the end of the term, that by contract such rights were granted to him.

6. The next question then is, can the 4th defendant claim occupancy rights in virtue of the Estates Land Act? The defendant can succeed by showing either that the land in question is an estate within the meaning of Section 3, Clause (2), of the Act or that the plaintiff is a land-holder as defined in Clause (5) of the same section. What was granted to Rayappa Razu was itself less than a village and Section 3(2)(e) does not apply even to the original grant. Rayappa Razu was himself a minor inamdar and the portion granted to Purushottam cannot possibly be an estate within the Act. This proposition is not disputed. The defendant, therefore, strongly seeks to make out that the plaintiff is a land-holder.

7. Mr. Varadachari, the learned Vakil for the plaintiff, contends that according to the true construction of Ex. E(1) it constitutes a grant only of the kudivaram interest. But for the purpose of the present appeal he does not propose to take his stand upon this. I have, therefore, to deal with the case on the footing that Rayappa Razu and Sundaranarasayya are minor inamdars. That they will in that event be land-holders must now be taken as settled. Jurugumilli Brahmayya v. Chellaghali Acthiraju 70 Ind. Cas. 615 : 43 M.L.J. 229 . That case is an authority for the proposition that although the grant of a post-settlement inam comprises both the varams, the grantee is a land-holder and the ryot can claim occupancy rights. Now, the short question is, did the grant in favour of Purushottam comprise both the varams, in other words, was there a grant in inam to him, or as the plaintiff contends, was he merely inducted to the land as a ryot? To put it in another way, what was the subject of the grant in favour of Purushottam?

(1) Was it of malvaram alone; in which case he would be a land-holder?

(2) Was it of malvaram and kudivaram; in which case again he would be a landholder?

(3) Was it of kudivaram alone; in which event he would be merely a ryot with the result that any under-tenant cannot claim rights of occupancy?

8. At the time of the grant, the land was waste and there were no cultivating tenants on ii, and what was granted, therefore, could not be melvaram alone. This hypothesis is, therefore, out of the question. The question, therefore, narrows itself into, was the grant of both the varams or was it only of kudivaram, in other words, was it the land that was granted or was the grantee introduced on the land merely as a ryot?

9. The contention of Mr. Varadachariar, the learned Vakil for the plaintiff, is two-fold. On the date of the grant by Sundaranarasayya the land was clearly waste. Where melvaram and kudivaram interests do not exist as two independent entities but only notionally (as in the case of waste land) it is not correct to describe the grant as, being in the nature of inam. Such a conception is erroneous in law. The transaction can amount only to admission of tenant to waste land as in the case of a darkhast grant in ryotwari tracts. Dealing with this contention, I must say I am unable to accept the theory that an inam grant of waste land is in law impossible. Mr. Varadachari's second contention cannot, however, be so easily disposed of. He contends, assuming that there is nothing to prevent the transaction from being a grant in inam, this transaction must be construed as a disposition in favour of a tenant. He argues that the land being waste, a favour able rent would be a normal feature and, points to Section 26 of the Estates Land Act and urges that it contemplates the co-existence of low rent with mere kudivaram grant. In effect he maintains that the transaction is not an out and out grant but it should be viewed in the nature of a perpetual lease, there being a remission of a part of the rent. The distinction between a grant in inam and a perpetual lease on a favourable rent is indeed very fine although in law it is quite sound and this distinction is very material in the consideration of the present question. To understand, therefore, what the true nature of the transaction is, a very careful scrutiny of the evidence be comes necessary.

10. In this connection I must point out that there is no suggestion that at the time of the grant by Sundaranarasiah the grantee was in possession of the land or that any person had any kudivaram interest in it. In para 5 of the plaint it is stated that the land was waste at that time and 4th defendant in his evidence admits that the land was then waste. Marina Veeraswamy v. Bayinappalli Venkatarayudu 57 Ind. Cas. 778 and Ganjam Manaikyamba v. Pasala Mallayya A.I.R. 1924 Mad. 782 are, therefore, inapplicable. The only other positions that remain to be dealt with are, first, that there was a simultaneous grant of both varams and, secondly, that there was a grant of kudivaram alone In the former case Brahmayya v. Achiraju 70 Ind. Cas. 615 directly applies and the grantee would be a land-holder.

11. To clear the ground, I should like before discussing the evidence to make another observation. Exhibit B very clearly shows that there was no fresh grant by the zemindar but that he merely confirmed the original grant, whatever it was, imposing probably a kattubadi for the first time or enhancing a previously existing kattubadi. With these remarks I shall examine the evidence.

(1) Exhibit B is more consistent with the theory of an inam grant than a lease on favourable terms; especially the use of the word 'kattubadi' favours this view.

(2) K-4 is a receipt by the zemindar in favour of Purushottam. He is described in it asinamdar and the sum of Rs. 6 payable by him as 'darimila kattubadi'.

There are other receipts where the word 'pattadar' appears but I attach importance to the word 'inamdar' which was specially written in ink, whereas the word 'pattadar' appears |in print in a common form of receipt.

(3) Exhibits 1 -A, 1-B, and 1-E, dated 23rd December 1901, lOlh December 1903 and 2nd May 1907 respectively are receipts granted by Purushottam to the 4th defendant. In the first and second of them, the rent is described as inam kist, in the third it is described as 'kist in respect of a manyam lands'.

(4) Exhibit D one of the kadapas executed in favour of Purushottam describes the land as 'inam wet lands'.

(5) The landlord's share alone is fixed at Rs. 43-8-0 in Ex. D, at Rs. 22-8-0 in Ex. C-1 and at Rs. 30 in Ex. C, whereas the kuttabadi is only Rs. 6.

(6) A holding in perpetuity is in the circumstances more consistent with the grant being in the nature of an inam.

(7) Exhibit A refers to the sums payable in respect of land as taxes and what is even more conclusive the property is described as post-settlement inam.

12. Beyond this, there is no evidence worth mentioning and as we must reach a decision only upon this material, I am of the opinion that the grant was in the nature of an inam, The plaintiff, therefore, is a land-holder and I must in this view uphold the judgment of the Subordinate Judge.

13. The appeal, therefore, fails and is dismissed with costs.

Madhavan Nair, J.

14. I agree. The main question for consideration in this appeal is, what was the nature of the grant, of the suit land by. Sundara Narasayya to Sripati Purshottam? Was it the grant of a land in inam, or, as is contended for by Mr. Varadachariar, the learned Vakil for the appellant, did the grant only amount to an admission of Sripati Purushottam to the land as a tenant, in which case the 4th defendant would not be an under-tenant under him? The decision of the question must depend entirely upon a scrutiny of the evidence in the case.

15. The original grant is not before us, but we have to proceed on the assumption that the land when it was given was merely a waste land. It is so described in the plaint and it is admitted by the 4th defendant in his evidence, from the nature of that land itself nothing definite as regards the character for the grant can be infers red. It is quite possible that only a kudu varum interest was granted to Sripati Purshottam. Section 26 of the Madras Estates Land Act shows that it is quite possible to make a grant of such a limited character, and the decisions quoted to ua also suggest that the idea of such a grant, is not an unfamiliar one. But the other evidence, in. the case which I shall presently exmaine makes me think that the grant in this case was in the nature of the grant in inam. This evidence consists of three classes of documents: (1) kadapas executed in. favour, of Sripati Purushottam, namely, Exs. D, D-1 and C, C-1; (2) Receipts granted by the Vizanagayram Estate to Sripati Purushottam, namely, Exs. K series (3); Receipts; granted to Sripati Purushottam to the 4th defendant; and (4) Exs. A and B.

(1) The kadapas do not afford much valuable evidence in the case, but Ex. D executed by one Bhimanna in favour of Sripati Purushottam describes the land 'inam wet land.' Exhibit C and C-1 show that Sripathi Purushottam was letting out the land for cultivation to tenants on lease. Taken along with the other evidence in the case, an inference though a faint one that Sripati Purushottam was an inamdar may be drawn from these documents.

(2) As re garde the receipts granted by the Estate we have to note that in Ex. K-4 Sripati Purushottam is described as 'inamdar.' The word is written in ink though the printed word 'pattadar', the usual word appearing in the printed receipts has not been scored out. In. Ex. K-8 the land is described as 'inam of No. 107 individual' and Sripati Purushottam is. described as 'inamdar,' and the word is written in ink. No doubt in some of the receipts he is described as 'pattadar' but it seems to me that importance is to be attached more to the description 'inamdar' than to the word pattadar as the former word has, as already mentioned, been specially written in ink, whereas the printed word 'pattadar' is the common word appearing in the receipts. It may also be noted that the kattubadi payable is variously described as 'dharmilla kattubadi' and 'dharmilla inam kattubadi. The words 'inam kattubadi' appearing in Ex. K-4 are again written in ink.

(3) Dealing with the 3rd class of documents, Ex, 1-a is a receipt given by an agent on behalf of Sripati Purushottam to the 4th defendant. It mentions that the rent is paid as 'inam cist for the land in Lakkavaram village.' In Ex. 1-b also the same description appears. In Ex. 1-0 the rent is referred to as 'kist for manyam land'. These receipts go to show how Sripati Purushottam himself thought about his right to the land.

(4) Exhibit A is the sale-deed to the plaintiff. There the suit land is described as 'dharmilla inam land.' Exhibit B is the agreement executed by Sripati Purushottam in favour of the Maharajah of Vizanagaram, dated the 8th of February 1893. This does not help us very much in finding out the nature of the grant in this case; but the use of the word 'kattubadi' suggests that the land may have been granted in inam. The oral evidence in the case is not of much importance. On a careful consideration of the above evidence, I have come to the conclusion that the grant by Sundara Narasayya to Sripati Purushottam was the grant of the land in inam, The plaintiff is, therefore, 'a land-holder' within the meaning of the Pull, Bench decision in Dramayya v. Achiraju 43 M.L.J. 229 .

16. The decisions in Marine Veeraswamy v. Boyinapplli Venkatarayudu 57 Ind. Cas. 778 and Ganjain Manikyamba v. Pasala Mallayya 12 L.W. 51 : 28 M.L.T. 458 and Ganjam Manaikyamba v. Pasala Mallayya (1924) M.W.N. 779 are inapplicable to this case as at the time when the land was granted to Sripati Purilshottam it is not suggested that there was anybody in possession of it.

17. As the plaintiff is a 'land-holder' the judgment of the learned Subordinate Judge is right and this appeal should be dismissed with costs.